Motion to Reconsider Does Not Toll Time to Seek Certification for Interlocutory Appeal

Indiana Trial Rule 53.4 provides that “a motion to reconsider does not toll the time period within which an appellant must file a notice of appeal,” and Indiana courts have routinely applied this to notices of appeal.  For apparently the first time, an Indiana appellate court has addressed whether this same provision, if violated, bars certification of an interlocutory appeal, answering “yes.”

Indiana Appellate Rule 14 provides, “A motion requesting certification of an interlocutory order must be filed in the trial court within thirty (30) days after the date the interlocutory order is noted in the Chronological Case Summary . . .”  Ind. App. R. 14(B)(1)(a).  The Indiana Court of Appeals in Nationwide Ins. Co. v. Parmer, No. 41A01-1008-CT-377, ___ N.E.2d ___, 2011 WL 5927424 (Nov. 29, 2011), recognized that just as Indiana Trial Rule 53.4 does not toll the deadline to file a notice of appeal, Indiana Trial Rule 53.4 also does not toll the thirty day deadline under Indiana Appellate Rule 14(B)(1)(a) to request certification by the trial court of an order for interlocutory appeal. 

Furthermore, Indiana Appellate Rule 14 provides that a court could grant relief from failure to comply with the thirty day deadline with a belated motion filed with good cause.  Ind. App. R. 14(B)(1)(a).  However, the Parmer court found that the record on appeal never addressed whether the untimely motion requesting certification satisfied Indiana Appellate Rule 14(B)(1)(a)’s good cause standard.  As a result, the Court of Appeals could not find that the appellant certified the trial court’s decision for interlocutory review, and the Court of Appeals lacked jurisdiction over that particular trial court decision.

http://www.in.gov/judiciary/opinions/pdf/11291103par.pdf

About Jon Mayes

I am an attorney in the Education Law Group of Bose McKinney & Evans LLP where I advise schools inlegal issues such as property transfers, public records requests, and general legal matters. I have significant experience in the labor and employment context, advising public employers on dismissals, internal investigations, handbook drafting, and compliance with federal and state laws (e.g., constitutional provisions, Title VII, ADA, FMLA, FLSA, ADEA, and Indiana wage payment laws).
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